Three years after she began what she described in the March 6 National Law Journal as the "heart wrenching" and "emotionally draining" experience of mediating wrongful death and personal injury lawsuits that arose out of the September 11 terror attacks, Sheila Birnbaum '65 said in a final report to Southern District of New York Judge Alvin Hellerstein that it is impossible to tell whether the litigants received better recoveries than people who went through a compensation fund created by Congress.

The report, accepted by Judge Hellerstein last week, details efforts that have left all but three of 95 cases settled for a total of $500 million.

Birnbaum, a partner at Skadden, Arps, Slate, Meagher & Flom, reported that the families of those killed in the attacks "probably" did better by litigating rather than going through the fund, but "it is impossible to judge whether people similarly situated" did better or worse "regardless of any differences in gross settlement amounts."

She said several factors account for the inability to make the comparison, including that people who went through the fund did not have to pay attorney fees.

Ninety-seven percent of those who lost family members or were injured in the attacks elected to go through the fund, which awarded $7 billion on 5,560 claims.

Birnbaum said an obstacle to settlement for families who chose to litigate was that they did not have the chance to "tell the story of their loss" to the judge or airlines or to personally receive condolences from an airline representative.

So Birnbaum held mediation sessions with family members and airline representatives, including some attended by Judge Hellerstein. "There was an emotional response and they wanted to find that someone was responsible other than the terrorists because of the grief they were feeling," Birnbaum said of the families. "For some, it was important to tell their story to the airlines and to the mediator so the memory of the person they loved and lost was somehow more cherished."

Mediation was attempted in the three remaining unsettled cases, but the families and their attorneys are pressing for a trial.

"Some want a trial because they want to tell their stories," Birnbaum said.